Rollins v. Business Men's Accident Association of America
| Decision Date | 28 February 1920 |
| Citation | 220 S.W. 1022,204 Mo.App. 679 |
| Parties | SUSAN E. ROLLINS, Respondent-Appellant, v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, Appellant-Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Howell County.--Hon. E. P. Dorris Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Gilmore & Brown and R. S. Hogan for appellant-respondent.
Stephen C. Rogers and John C. Dyott for respondent-appellant.
This is an appeal and cross-appeal from Howell County, Missouri, from a judgment rendered in a suit on an accident insurance policy by the defendant (which we will designate hereafter as the Association), on the life of Elisha M. Rollins, deceased, in favor of the plaintiff, Susan R. Rollins, his wife. There was a judgment for the full amount of the principal sum of the policy in favor of the plaintiff She also sued for attorney fees and vexatious delay. She received nothing on this latter account and files her appeal from the action of the court in dealing with the attorney fee and vexatious delay question.
In the beginning, we may say that plaintiff's cross-appeal can be disposed of at once, because of the fact that the judgment here in her favor for $ 5236.37, on account of an erroneous instruction, must be reversed, and also for the reason that the question raised in the trial of this cause is one that has been and was a mooted question in this State at the time the demand was made on the defendant to pay under the policy and the refusal thereof by it.
A constitutional question was raised in the circuit court charging that section 6945, Revised Statutes 1909, was unconstitutional and invalid. This cause on both appeals was then taken to the Supreme Court. That court, in an opinion rendered on June 2, 1919, reported in 213 S.W. 52, held that there was no constitutional question before it and transferred the cause here. A statement of the case is made in that opinion, and we refer to the statement of facts set forth there as a part of this opinion.
The case as it stands here for determination, after the disposal of plaintiff's cross-appeal, has but three questions to be determined; first, on the sufficiency of the petition; second, on the giving of instructions for the plaintiff permitting a recovery on this accident policy in the event that the insured intentionally committed suicide; third, on the validity of Clause 15 in the policy, which provides for the production of an eyewitness to establish the accident in case the insured comes to his death by fire-arms, and etc. The validity of that clause under the facts of this case is to be determined in the event that the assured accidentally met his death by the discharge of the gun which was found beside his body absent any question of suicide, intentional or by reason of insanity. On account of instructions given for plaintiff in relation to the question of suicide, to which question we will refer later, this judgment must be reversed.
The provision in the petition which is assailed charged that said Elisha M. Rollins, while said insurance was in full force, received through external, violent and accidental means, injured and killed by the top of his head being severed from the discharge of a double-barrel shotgun, from the effect of which the said Elisha M. Rollins on said date died, and that the said gun was discharged by him "with the intent to commit suicide, or that it was accidentally or inadvertently discharged by said deceased, Elisha M. Rollins, or some other person or means, the fact and real cause being unknown to this plaintiff herein, it being one or the other, exactly which she is unable to state." We have put in quotations the averments complained of by the defendant, and agree with the appellant that it is a charge in the alternative, one branch of which would entitle plaintiff to recover the full amount of the accidental death policy the other wing, that is the intentional suicide charge, would deny her a right of recovery on an accidental insurance policy. [Scales v. Insurance Company, 212 S.W. 8; Brunswick v. Standard Accident Insurance Company, 278 Mo. 154, 213 S.W. 45.]. The charge that the deceased committed suicide was undoubtedly put into this petition following the erroneous holding in Applegate v. Insurance Company, 153 Mo.App. 63, 132 S.W. 2, since overruled in Scales v. Insurance Company, 212 S.W. 8, and Brunswick v. Insurance Company, 278 Mo. 154, 213 S.W. 45. The policy in this case makes liability for accidental death $ 5000, and exempts liability for suicide while sane. Such alternative pleas have been held bad. [See Drolshagen v. Railroad, 186 Mo. 258, 85 S.W. 344; Behen v. Transit Company, 186 Mo. 430, 85 S.W. 346.] On a retrial, which there must be in this case, the plaintiff should amend her petition in this regard if she so desires.
As we read this provision if the assured met his death by accident and the plaintiff produced the proof required, under the law she should be entitled to recover on an accidental life insurance policy for the full amount thereof. If on the other hand it be found that the assured came to his death by reason of intentional suicide, then plaintiff would recover nothing. Instructions given on behalf of plaintiff permitting a recovery for the full amount of this policy, and declaring that even though it be found that the deceased met his death by intentional suicide, it was yet an accident, were clearly erroneous. [Brunswick v. Standard Accident Insurance Co., 278 Mo. 154, 213 S.W. 45; Rollins v. Insurance Company, 213 S.W. 52; Scales v. Insurance Company, 212 S.W. 8.]
As set out in the opinion in this same case (213 S.W. 52) there is no question of suicide while insane in this case, and as held there in determining the questions which arise in this case, the suicide section of the statute (sec. 6945, R. S. 1909), is in no way involved. This must be borne in mind in dealing with the next question which we are to consider, that is, the provision in the policy providing for an eyewitness, for if there had been raised the question of the deceased coming to his death by his own hand while insane, then the determination of the validity of Clause 15 of the policy as to the eyewitness might raise a different proposition, because it might be then found that Clause 15 under those facts would evade the suicide statute and for that reason be held as invalid. [Iowa State Traveling Men's Ass'n v. Ruge, 242 F. 762.] But the insanity question, as before stated, being out of the case, we have only to deal with that provision of the policy requiring an eyewitness where the death was by firearms which were discharged from a purely accidental cause. We are, therefore, brought to decide whether section 15 of the policy is an invalid provision and void because it is an attempt to so change the rules of evidence that it defeats the cause of action, and is an unreasonable provision in that it attempts to unreasonably interfere with the procedure of courts in administering the law. In deciding this question, we find a case where there is ample evidence from which a jury would be justified in concluding that the deceased came to his death while sane from a purely accidental cause, that is from the gun having been accidentally discharged and killing him while he was upon a ladder getting it from the top of a case. Under these circumstances, can the defendant defeat a full recovery on this policy because perchance the plaintiff is unable to produce an eyewitness to that accidental discharge? Section 15 of the policy reads: "If the insured receives bodily injuries, fatal or otherwise, from the discharge of firearms . . . the claimant shall establish the accidental character of the injury by the testimony of at least one eyewitness to the accident other than the insured himself, and in the event of failure so to do . . . the liability of the association shall be limited to one-tenth of the amount otherwise payable." If this is a valid provision of an accident life insurance policy, under these facts the plaintiff's full recovery could be but $ 500. If, on the other hand, it is an invalid provision of the contract, and the trier of the fact should find from competent evidence that the discharge of the gun was purely accidental, resulting in assured's death, then plaintiff would be entitled to $ 5000.
Our investigation of the law, as well as the investigation of counsel discloses that this is a new question in the State of Missouri, and that it is a question which has arisen in the United States in comparatively few cases, and our investigations reveal but one case where the identical provision has been passed on as to its validity under circumstances similar to those in this case, and there the Supreme Court of Iowa upheld the validity of the stipulation. [See Roeh v. Business Men's Protection Ass'n of Des Moines, 164 Iowa 199, 145 N.W. 479.] That case cites as an authority National Ass'n v. Ralstin, 101 Ill.App. 192. On examining the latter case, we fail to see where it is an authority on the validity of this provision because the court held that the plaintiff there had made a good case even under the provision. It was a case where the plaintiff was merely injured, and that court held that he being an eyewitness to the tragedy was sufficient. That provision did not provide that the eyewitness must be someone other than the injured himself. The validity of the clause was not discussed or passed on by that court. There is also cited in the Roeh case the case of Kelly v. Supreme Council, 46 A.D. 77, 61 N.Y.S. 394. In that case the New York court held that a stipulation avoiding the...
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